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2012 DIGILAW 4307 (MAD)

United India Insurance Co. Ltd. v. Dheivathal

2012-10-15

M.VENUGOPAL

body2012
Judgment The Appellant/3rd Respondent/Insurance Company has projected the present Civil Miscellaneous Appeal as against the Award dated 07.04.2010 in M.C.O.P.No.387 of 2009 passed by the Learned Principal Subordinate Judge [Motor Accidents Claims Tribunal], Tiruppur. 2. The Learned Principal Subordinate Judge, Tiruppur, while passing the Award in M.C.O.P.No.387 of 2009 on 07.04.2010, has, among other things, observed that the accident has taken place because of the carelessness and negligence of the 1st Respondent-driver of the offending vehicle bearing Registration No. TAP 8080 [4th Respondent in Appeal] and further held that the Appellant/Insurance Company is liable to pay in all a sum of Rs.2,70,000/- to the Respondents 1 to 3/Claimants along with interest at 7.5% per annum from the date of filing of the Petition till date of deposit of the award amount. 3. Being dissatisfied with the award passed by the Claims Tribunal, the Appellant/Insurance Company, as an aggrieved person, has focussed the instant Civil Miscellaneous Appeal before this Court. Contentions of the Appellant/Insurance Company: 4. The Learned Counsel for the Appellant/Insurance Company contends that the Learned Principal Subordinate Judge, Tiruppur has failed to appreciate that at the time of accident, the offending vehicle bearing Registration No. TAP 8080 driven by its driver (4th Respondent) has not been in possession of valid driving licence to drive the van, but this material aspect of the matter has not been properly appreciated by the Claims Tribunal in a proper and real perspective. 5. It is the further submission of the Learned Counsel for the Appellant/Insurance Company that the quantum of compensation viz., Rs.2,70,000/-along with interest at 7.5% per annum awarded by the Claims Tribunal is an excessive and arbitrary one. 6. According to the Learned Counsel for the Appellant/Insurance Company, the Claims Tribunal has incorrectly adopted the multiplier of 7' instead of adopting 5' because of the fact that the deceased Kandasamy at the time of accident on 02.03.2009 has been aged 62 years. 7. Lastly, the Learned Counsel for the Appellant/Insurance Company submits that in the absence of any acceptable and reliable evidence in regard to the occupation or income of the deceased Kandasamy, the Tribunal has committed an error in determining the monthly income/contribution of the deceased at Rs.4000/- per month. Stand of the Respondents 1 to 3/Claimants: 8. 7. Lastly, the Learned Counsel for the Appellant/Insurance Company submits that in the absence of any acceptable and reliable evidence in regard to the occupation or income of the deceased Kandasamy, the Tribunal has committed an error in determining the monthly income/contribution of the deceased at Rs.4000/- per month. Stand of the Respondents 1 to 3/Claimants: 8. According to Respondents 1 to 3/Claimants, the deceased Kandasamy at the time of accident on 02.03.2009 at about 10.30 a.m. was hale and healthy and he was aged about 59 years. Further, he was doing agricultural works and was a milk vendor and derived an income of Rs.10,000/-per month. The Respondents 1 to 3/ Claimants owing to the untimely death of Kandasamy -breadwinner of the family had estimated the loss of income at Rs.12,00,000/- and they spent Rs.10,000/-for funeral expenses and a further sum of Rs.10,000/- for transporting the body of the deceased to the native place etc. 9. The plea taken by the Respondents 1 to 3/Claimants before the Tribunal was that on 02.03.2009 at about 10.30 a.m., the deceased Kandasamy was walking in the mud road and that the offending van bearing Registration No. TAP 8080 came in the reversed direction in a rash and negligent manner dashed against the deceased, as a result of which, he was thrown away and he died due to the injury sustained. Therefore, the Respondents 1 to 3/Claimants contend that the accident was due to the rash and negligent driving of the 4th Respondent/1st Respondent (driver of the offending vehicle) in the course of employment under the 5th Respondent/2nd Respondent (owner of the offending vehicle) the Appellant. The Appellant/ Insurance Company is the insurer of the offending vehicle. Therefore, the Respondents 4 and 5 and the Appellant/Insurance Company are liable to pay the compensation claimed by the Respondents 1 to 3/ Claimants jointly and severally to them. 10. The Appellant/ Insurance Company is the insurer of the offending vehicle. Therefore, the Respondents 4 and 5 and the Appellant/Insurance Company are liable to pay the compensation claimed by the Respondents 1 to 3/ Claimants jointly and severally to them. 10. The Learned Counsel for the Respondents 1 to 3/Claimants cites the decision of this Court in ICICI Lombard General Insurance Company Limited, Chennai V. Annakkili, 2012 (1) TN MAC 226 at page 227 wherein it is, inter alia, held that'The best and direct evidence that could be obtained is only from RTO within whose jurisdiction driver resides and also that the insurers can also ascertain from State Government or Transport Commissioner who is expected to maintain a consolidated list of licence particulars as mandated by Rule 23 to maintain State Register in Form-10'. Also, in the said decision, it is laid down that 'Mere pleadings in counter affidavit or written statement by insurer alleging breach of policy conditions by itself would not amount to proof of discharging their burden and the insurer must lead reliable and cogent evidence in support of the plea'. 11. Before the Claims Tribunal, Respondents 4 and 5 [driver and owner of the offending vehicle] remained exparte. Only, the Appellant/ Insurance Company contested the proceedings. 12. Before the Tribunal, on behalf of the Respondents 1 to 3/ Claimants, witnesses P.W.1 and P.W.2 have been examined and Ex.P.1 to Ex.P.4 have been marked. On the side of Appellant/Insurance Company, witness R.W.1 has been examined and Ex.R.1-Motor Vehicles Inspector's Report has been marked. On a scrutiny of the entire oral and documentary evidence available on record, the Claims Tribunal has resultantly awarded a sum of Rs.2,70,000/- in aggregate to the Respondents 1 to 3/Claimants together with interest at 7.5% per annum from the date of filing of the Petition till date of deposit of the award amount. It also apportioned the compensation award amount to the 1st Respondent/1st Claimant as Rs.1,70,000/-; it awarded a sum of Rs.75,000/- to the 2nd Respondent/2nd Claimant and to the 3rd Respondent/3rd Claimant, it awarded a sum of Rs.25,000/-. It also determined the Advocate's Fee at Rs.8,400/-. 13. It also apportioned the compensation award amount to the 1st Respondent/1st Claimant as Rs.1,70,000/-; it awarded a sum of Rs.75,000/- to the 2nd Respondent/2nd Claimant and to the 3rd Respondent/3rd Claimant, it awarded a sum of Rs.25,000/-. It also determined the Advocate's Fee at Rs.8,400/-. 13. It is not in dispute that the Respondents 1 to 3/Claimants have preferred the Claim Petition in M.C.O.P.No.387 of 2009 on the file of the Learned Principal Subordinate Judge, Tiruppur [Motor Accidents Claims Tribunal] claiming a sum of Rs.10,00,000/-together with subsequent interests and costs as compensation for the death of deceased Kandasamy. The deceased Kandasamy was the husband of the 1st Respondent/1st Claimant. The Respondents 2 & 3/Claimants 2 & 3 are the daughter and mother of the deceased Kandasamy. 14. A perusal of the Claim Petition in M.C.O.P.No.387 of 2009 on the file of the Principal Subordinate Judge, Tiruppur clearly indicates that Respondents 1 to 3/Claimants, in Column No.21(a) under the following heads, have claimed the compensation as under: 21.Amount of compensation claimed : Rs.10,00,000/- a. Particulars of loss & expenses: PART I a. Loss of earning : Rs.12,00,000/- b. Partial loss of earning : Rs. 10,000/- c. Transport to Hospital : d. Extra Nourishment : - e. Damage to clothing & articles : - f. Others Loss of consortium : Rs. 20,000/- Loss of Love & Affection : Rs. 60,000/- Funeral expenses : Rs. 10,000/- g. Compensation for pain & suffering : - h. Compensation for continuing as permanentdisability if any. : i. Compensation for the loss of earning power : - Rs.13,00,000/- In short, the Respondents 1 to 3/Claimants have restricted their claim of compensation to an extent of Rs.10,00,000/-. 15. At this stage, this Court pertinently points out that the Appellant/Insurance Company, in its counter, has taken a specific stand that it denies that the offending vehicle had a valid fitness certificate on the date of accident and therefore, it is liable to indemnify the owner of the vehicle (viz., 5th Respondent). Also, it denied that the driver of the offending vehicle viz., 4th Respondent had an effective licence/endorsement to drive the vehicle at the time of accident. Also, it denied that the driver of the offending vehicle viz., 4th Respondent had an effective licence/endorsement to drive the vehicle at the time of accident. Added further, the Appellant/Insurance Company, in the counter affidavit at paragraph 13 before the Tribunal, had not admitted that there was valid insurance policy for the offending vehicle bearing Registration No. TAP 8080 on the date of accident or that there was a valid permit or that the driver was duly licenced on the date of accident. As such, a crystal clear plea was taken on behalf of the Appellant/Insurance Company that it was not liable to indemnify the 5th Respondent/2nd Respondent (owner of the vehicle). 16. It transpires from Ex.P.1-F.I.R. that the Complainant/ Informant is the 1st Respondent/1st Claimant and the suspected accused is mentioned as driver of the van bearing Registration No. TAP 8080. In the FIR, the 1st Respondent/1st Claimant (as Complainant) has stated that on 02.03.2009 at about 10.30 a.m. in the morning when the Eicher Tempo Vanbearing Registration No. TAP 8080 has arrived, her husband (Kandasamy) in order to load the vehicle was proceeding from eastern side to western side by walking and at that time, the aforesaid van driver [4th Respondent/2nd Respondent] had taken the vehicle from eastern side to western side in reverse in a fast speed and in a negligent manner, as a result of which, it dashed against her husband and he subsequently fell down. Immediately, she ran to the spot and raised hue and cry and with the assistants of others, she had given the water to her husband and further, on seeing her husband, she came to be known that he sustained injuries on right leg, on right side chest, on the back left side of the neck, right cheek and immediately took him under an ambulance to the Palladam hospital for treatment and on examination by the doctor, it was informed that her husband had died. On the basis of the 1st Respondent/1st Claimant's complaint dated 02.03.2009, F.I.R.No.74/2009 was registered by the Sub Inspector of Police, K.V. Palayam under Section 279, 304 (A) of Indian Penal Code. 17. Ex.P.2 is the postmortem certificate relating to the deceased Kandasamy. As seen from the postmortem certificate, it is evident that the deceased Kandasamy was aged 62 at the time of his death. 17. Ex.P.2 is the postmortem certificate relating to the deceased Kandasamy. As seen from the postmortem certificate, it is evident that the deceased Kandasamy was aged 62 at the time of his death. In the postmortem report, the doctor had opined that 'the deceased would appear to have died of shock and hemorrhage due to injury to vital organ ... 3 of Ribs and Right Hip'. Also, the doctor had opined that 'deceased would have died 4 Hrs to 6 Hrs prior to autopsy'. Respondents 1 to 3/Claimants have filed the legal heir certificate to show that they are the heirs of deceased Kandasamy. 18. In Ex.R.1-Motor Vehicles Inspector's Report, in Serial No.6, it is mentioned thus: 6.Particulars of driving licence available ... D.L. No. ... Badge No. ... Not produced Validity upto ... Also, it is the opinion of the Motor Vehicles Inspector that the accident was not due to any mechanical defect of the vehicle. Summation of Evidence of P.W.1 and P.W.2 & Finding: 19. P.W.1 (1st Respondent/1st Claimant), in her evidence [before the Claims Tribunal], had clearly deposed that the offending vehicle van driver bearing Registration No. TAP 8080 (4th Respondent) had driven the vehicle at the time of accident on 02.03.2009 at about 10.30 a.m. in the morning in a fast speed and negligently and further he had not also adhered to the road rules and had dashed against her husband while he was walking as a result of which, her husband had sustained grievous injury and immediately he was taken to the Government Hospital at Palladam, where he was examined by the doctor who informed that he had already expired. 20. P.W.2 had stated that the deceased Kandasamy was walking on the along side of the mud road from eastern to western side and at that time the offending vehicle bearing Registration No.TAP 8080 was driven by its driver in a fast speed and in a negligent manner and also in a rash fashion without adhering to the road rules and the van dashed against the deceased Kandasamy. 21. Both P.W.1 and P.W.2, in their evidences, had categorically stated that the accident had taken place because of the negligent manner driving of the offending vehicle. Their evidences are trustworthy, cogent and in a coherent fashion. In short, P.W.1 and P.W.2's evidence as to the manner and method of occurrence are worthy of credence. 21. Both P.W.1 and P.W.2, in their evidences, had categorically stated that the accident had taken place because of the negligent manner driving of the offending vehicle. Their evidences are trustworthy, cogent and in a coherent fashion. In short, P.W.1 and P.W.2's evidence as to the manner and method of occurrence are worthy of credence. As such, they are accepted by this Court. Accordingly, it is held by this Court that the accident had taken place only because of the carelessness and negligent act of the 4th Respondent – driver of the offending vehicle and therefore, he is squarely held responsible for the happening of the occurrence and the point is answered accordingly. Discussion – Quantum of compensation to be awarded: 22. Dealing with the plea of quantum of compensation awarded by the Tribunal, viz., Rs.2,70,000/- together with interest at 7.5% per annum etc. as an excessive/higher side, it is to be pointed out by this Court that at the time of death of Kandasamy as seen from the postmortem report, he was aged about 62 years [although it was averred in the petition that he was aged 59 years]. The Tribunal had taken the monthly income of the deceased at Rs.4000/- [notwithstanding the fact that the Respondents 1 to 3/Claimants had claimed the income of the deceased Kandasamy as Rs.10,000/- per month] and the Tribunal had deducted 1/3rd towards the personal expenses of the deceased and after deducting a sum of Rs.16,000/- (being 1/3rd towards his personal expenses), it had determined the loss of dependency/loss of income at Rs.32,000/- per annum. It had adopted a multiplier of 7'. Finally, towards the loss of income, it had determined a sum of Rs.2,24,000/-. It had awarded a sum of Rs.10,000/- for loss of consortium to the 1st Respondent/1st Claimant; Towards loss of love and affection to the Respondents 1 to 3/ Claimants, it had awarded Rs.30,000/- Towards funeral expenses, it granted a sum of Rs.5,000/-. It also awarded a sum of Rs.1000/- towards transportation expenses. For the award sum of Rs.2,70,000/-, it had also granted interest at 7.5% per annum from the date of filing of the petition till date of deposit and it directed the Appellant/ Insurance Company and Respondents 4 & 5/Respondents 1 and 2 to pay compensation amount awarded in a joint and several fashion. Also, it fixed lawyer's fee at Rs.8,400/-. For the award sum of Rs.2,70,000/-, it had also granted interest at 7.5% per annum from the date of filing of the petition till date of deposit and it directed the Appellant/ Insurance Company and Respondents 4 & 5/Respondents 1 and 2 to pay compensation amount awarded in a joint and several fashion. Also, it fixed lawyer's fee at Rs.8,400/-. It also granted two months time to the Appellant/Insurance Company to pay the compensation amount, since the Appellant/Insurance Company is vicariously liable to pay the compensation amount awarded to the Respondents 1 to 3/Claimants as an insurer of the offending vehicle. 23. Although a categorical plea was taken before the Tribunal by the Appellant/Insurance Company that the offending vehicle driver had no driving licence or valid permit etc., the Appellant/Insurance Company had miserably failed in its duty to prove the said fact that the offending vehicle driver (4th Respondent) had no valid licence to drive the offending vehicle or there was no valid permit for the offending vehicle at the time of occurrence. 24. On behalf of the Appellant/Insurance Company, an endeavour has been made before this Court to take advantage of the fact that the driving licence was not produced as seen from Ex.R.1, this Court pertinently points out that when a specific plea had been taken by the Appellant/Insurance Company in paragraph 13 of its counter 'this Respondent does not admit that there was valid insurance policy for the van bearing Registration No. TAP 8080 on the date of accident or that there was a valid permit or that the driver was duly licenced on the date of accident'. It is the primordial duty on the part of the Appellant/Insurance Company to take all earnest possible endeavours to see that it proved its stand as per the defence taken by it as referred to supra. 25. Unfortunately, the Appellant/Insurance Company had failed to discharge its onus in establishing the fact that there was no valid insurance policy for the offending vehicle or for that matter there was a valid permit or that the driver was not duly licenced on the date of accident. In law, to aver particular fact or matter is one thing. To prove the said fact, in the manner known to law and in accordance with law, is a different thing altogether. In law, to aver particular fact or matter is one thing. To prove the said fact, in the manner known to law and in accordance with law, is a different thing altogether. On both counts, this Court unhesitatingly comes to the conclusion that the Appellant/Insurance Company had palpably failed in its attempt to establish its defence pleaded as per paragraph 13 in the counter as mentioned supra. Also, it is to be pointed out that burden of proof is not a static one. In fact, the pendulum swings from one side to another depending upon proving a particular displacement of fact situation. 26. It is to be noted that the compensation awarded must be such that the ordinary sensible man would not instinctively regard them as either mean or extravagant, but consider to be sensible, fair as per Solomon L.J. in 1968 All E.R. 726. 27. According to Edmund Devies in 1970 114 Sol. Jo. 193 It is the duty of the Tribunal to award as perfect sum as was within its power'. 28. No wonder, the Motor Vehicles At, 1988 (as amended up to date) speaks of 'Just Compensation' and not 'Reasonable Compensation' as per decision in B.H. Rangaiah V. H.R.V. Basavaraju and another, AIR 2000 Karnataka 324. 29. In the present case on hand, there is no cogent, coherent and convincing evidence let in on the side of the Appellant/Insurance Company to establish its stand that the driver had no valid licence to drive the offending vehicle or there was no valid permit for the offending vehicle at the time of happening of occurrence. 30. In the instant case, at the risk of repetition, this Court holds that the Appellant/Insurance Company had not established that there was no valid insurance policy on the date of accident for the offending vehicle as referred to above or there was no valid permit or that the driver was not duly licenced on the date of accident. To put it succinctly, the onus of proof in regard to the non possession of licence while driving the vehicle in a public place or a person driving the vehicle without a licence as per Section 3 of the Motor Vehicles Act was squarely rested on the Appellant/Insurance Company. Unfortunately, this burden was not discharged on the part of the Appellant/Insurance Company in the given case, as opined by this Court. 31. Unfortunately, this burden was not discharged on the part of the Appellant/Insurance Company in the given case, as opined by this Court. 31. When a Tribunal awards a compensation to the deceased, it must award the compensation in a fair and equitable manner. No mathematical precision or accuracy could be gauged or applied while arriving at a compensation and that too when the family had lost a dear breadwinner. Human life cannot be quantified or compensated by awarding monetary amount of compensation. But, as on date, to alleviate the misery and sufferings of the family which had lost a breadwinner, the only course open to a Tribunal/a Court of Law is to award a just, fair, equitable and sensible compensation which could be compensated in monetary tape/measure as far as possible. By awarding a just compensation, a Court of Law/Tribunal must bear in mind of the fact that how much the potential breadwinner would have contributed towards the family per month if the deceased had not met with the untimely death and further, in what manner the loss of dependency/loss of income could be arrived at/determined by it in terms of monetary replacement as compensation, to be awarded by it. 32. Be that as it may, as far as the present case is concerned, on going through the available oral and documentary evidence on record and on perusing the award passed by the Claims Tribunal, this Court comes to an inevitable conclusion that the award dated 07.04.2010 in M.C.O.P.No.387 of 2009 passed by Tribunal does not suffer from any material irregularity or patent illegality. Per contra, the compensation of Rs.2,70,000/- together with interest at 7.5% per annum to be paid by the Appellant/Insurance Company [from the date of filing of the petition till date of deposit etc.] awarded by the Tribunal viz., Principal Subordinate Court, Tiruppur is correct and valid in law. Consequently, the Civil Miscellaneous Appeal sans merits. 33. In the result, the Civil Miscellaneous Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the award passed by the Tribunal viz., Principal Subordinate Judge, Tiruppur dated 07.04.2010 in M.C.O.P.No.387 of 2009 is affirmed by this Court for the reasons assigned in this Appeal. 34. Consequently, the Civil Miscellaneous Appeal sans merits. 33. In the result, the Civil Miscellaneous Appeal is dismissed, leaving the parties to bear their own costs. Resultantly, the award passed by the Tribunal viz., Principal Subordinate Judge, Tiruppur dated 07.04.2010 in M.C.O.P.No.387 of 2009 is affirmed by this Court for the reasons assigned in this Appeal. 34. It is represented before this Court that the Appellant/ Insurance Company has deposited the entire award amount before the Claims Tribunal on 25.02.2011 pursuant to the order passed by this Court in M.P.No.1 of 2011 in C.M.A.No.234 of 2011 dated 03.02.2011. It is also represented before this Court on behalf of the Respondents 1 to 3/Claimants that 50% of the award amount has already been withdrawn by the respective Claimants before the Tribunal. In view of the disposal of the present C.M.A.No.234 of 2011, liberty is granted to the Respondents 1 to 3/Claimants to withdraw the balance amount, lying in deposit to the credit of M.C.O.P.No.387 of 2009 on the file of the Principal Subordinate Judge, Tiruppur, by filing necessary payment out application as per Civil Rules of Practice and in the manner known to law. Consequently, connected Miscellaneous Petition is closed.